Whilst the decision involves the interpretation of Pt 3 (ss 27–33) of the Civil Liability Act 2002 (NSW), which Queensland does not have an equivalent to; it is instructive as to the interpretation of key phrases and a reaffirmation of the content of the duty of care [para 25]:
“Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the Court in Tame rejected the propositions that concepts of “reasonable or ordinary fortitude”, “shocking event” or “directness of connection” were additional pre-conditions to liability.” (formatting added)
FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ:
At about 7.14 am on 31 January 2003, a passenger train operated by “State Rail” left the tracks at high speed near Waterfall Station, south of Sydney. Seven of the almost 50 people on the train died. Many others were injured, some very seriously. All four carriages of the train were very badly damaged.
Mr Wicks and Mr Sheehan each alleges that he was injured as a result of being present at the crash site and what he witnessed there. Each pleaded, as particulars of the injuries he suffered: psychological and psychiatric injuries, post traumatic stress syndrome, nervous shock and major depressive disorder.
The determinative issue
The determinative issue in each appeal is whether, if State Rail owed the appellant a relevant duty of care, and if the appellant suffered a recognised psychiatric illness of which the negligence of State Rail was a cause, State Rail is liable to the appellant. All parties accept that resolution of this issue turns on the construction and application of Pt 3 (ss 27–33) of the Civil Liability Act 2002 (NSW) (“the Civil Liability Act“). The issue should be resolved in favour of the appellants, and each matter remitted to the Court of Appeal of New South Wales for its further consideration.
Both at first instance, and on appeal to the Court of Appeal, the answer to the second issue identified by the parties, concerning the application of s 30(2) of the Civil Liability Act, was treated as determinative of the liability of State Rail. Since its insertion into the Civil Liability Act by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Pt 3 of the Civil Liability Act has remained unamended. Section 30(1)–(4) of the Civil Liability Act provides:
“(1) This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in peril by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.
(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.”
Section 30(5) provides definitions of the expressions “close member of the family” and “spouse or partner” (an expression used in the definition of close member of the family).
The outcome of the litigation was treated, both at trial and on appeal to the Court of Appeal, as turning upon whether Mr Wicks and Mr Sheehan “witnessed, at the scene, the victim being killed, injured or put in peril” within the meaning of s 30(2)(a). Both Malpass AsJ and the Court of Appeal concluded that neither appellant witnessed a victim or victims of the derailment “being killed, injured or put in peril”.
Section 32 is entitled “Mental harm – duty of care”. It provides:
“(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.
(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.
(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.”
Section 32, taking the form it does, must be understood against the background provided by the common law of negligence in relation to psychiatric injury as stated by this Court in Tame v New South Wales. Judgment in Tame was delivered on 5 September 2002; the provisions of Pt 3 of the Civil Liability Act were inserted in December 2002 by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW).
Tame held that in deciding whether, for the purposes of the tort of negligence, a defendant owed a plaintiff a duty to take reasonable care to avoid recognisable psychiatric injury, the central question is whether, in all the circumstances, the risk of the plaintiff sustaining such an injury was reasonably foreseeable. A majority of the Court in Tame rejected the propositions that concepts of “reasonable or ordinary fortitude”, “shocking event” or “directness of connection” were additional pre-conditions to liability.
In part, s 32 of the Civil Liability Act reflects the state of the common law identified in Tame. Consistent with what was decided in Tame, s 32 assumes that foreseeability is the central determinant of duty of care. Consistent with Tame, “shocking event”, and the existence and nature of any connection between plaintiff and victim and between plaintiff and defendant, are considerations relevant to foreseeability, but none is to be treated as a condition necessary to finding a duty of care. But contrary to what was decided in Tame, s 32 provides that a duty of care is not to be found unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness.
Duty of care?
Although the Court of Appeal expressly declined to decide whether State Rail owed a duty to take reasonable care not to cause mental harm to Mr Wicks and Mr Sheehan, who each came to the scene of this accident as a “rescuer” (the expression used by the parties in their agreed statement of issues), it would be open to this Court to decide that issue. Contrary to the submissions of State Rail, the question of duty of care is a question of law. To resolve this question would require consideration of whether it was reasonably foreseeable that a rescuer attending a train accident of the kind that might result from State Rail’s negligence (in which there might be many serious casualties and much destruction of property) might suffer recognisable psychiatric injury as a result of his experiences at the scene. Or to put the same question another way, was it reasonably foreseeable that sights of the kind a rescuer might see, sounds of the kind a rescuer might hear, tasks of the kind a rescuer might have to undertake to try to ease the suffering of others and take them to safety, would be, in combination, such as might cause a person of normal fortitude to develop a recognised psychiatric illness? The question of foreseeability is to be posed in these terms because it must be judged before the accident happened.
Any finding at first instance that there was no singular shocking event encountered by either Mr Wicks or Mr Sheehan would not be determinative of the issue of foreseeability and it would not preclude a conclusion that a duty of care was owed. If Malpass AsJ made such a finding (which is itself a doubtful proposition) the finding would seem, on the face of the matter, not to be consistent with the description given in evidence of the scene and the events to which the appellants were exposed at the site of the accident.
Because, however, both parties submitted that this Court should not decide the issue of duty of care, these are not issues that should now be decided. The issue of duty of care should be remitted for consideration by the Court of Appeal.
Assuming that State Rail did owe Mr Wicks and Mr Sheehan a duty to take reasonable care not to cause mental harm, was s 30(2) engaged? That turns on whether the claims of the appellants were claims alleged to arise “wholly or partly from mental or nervous shock in connection with another person … being killed, injured or put in peril” by the negligence of State Rail. The phrase must be construed as a whole. It is, however, convenient to begin by noticing some particular matters about one aspect of it: the reference to “shock” in the composite expression “mental or nervous shock”.
“Being killed, injured or put in peril”
The expression “being killed, injured or put in peril” is used in s 30(1) as well as in s 30(2)(a). The evident intention of s 30(2) is to create a particular subset of cases that fall within the general description of claims “for pure mental harm … arising wholly or partly from mental or nervous shock in connection with another person … being killed, injured or put in peril”. But the definitions of both the general class, and the particular subset created by s 30(2), hinge about another being killed, injured or put in peril. The general class is identified by reference to shock in connection with another being killed, injured or put in peril. The subset is fixed by an “unless” clause. The alternative conditions thus fixed, as necessary for membership of the subset, are first, that the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or second, that the plaintiff is a close member of the family of the victim.
Although both sub-s (1) and sub-s (2) use the phrase “being killed, injured or put in peril”, sub-s (1) applies to claims for pure mental harm arising wholly or partly from mental or nervous shock in connection with that event (another being killed, injured or put in peril); sub-s (2) requires that the plaintiff either witnessed that event or was a close relative of the victim. The reference in sub-s (1) to the event must be read as referring to an event that may (but need not) have been complete before the suffering of nervous or mental shock. By contrast, because sub-s (2)(a) requires witnessing of the event at the scene, it must be read as directing attention to an event that was happening while the plaintiff “witnessed” it.
It would not be right, however, to read s 30, or s 30(2)(a) in particular, as assuming that all cases of death, injury or being put in peril are events that begin and end in an instant, or even that they are events that necessarily occupy only a time that is measured in minutes. No doubt there are such cases. But there are cases where death, or injury, or being put in peril takes place over an extended period. This was such a case, at least in so far as reference is made to victims being injured or put in peril.
The consequences of the derailment took time to play out. Some aboard the train were killed instantly. But even if all of the deaths were instantaneous (or nearly so), not all the injuries sustained by those on the train were suffered during the process of derailment. And the perils to which living passengers were subjected as a result of the negligence of State Rail did not end when the carriages came to rest.
Most, if not all, who were injured suffered physical trauma during the process of derailment. It may readily be inferred that some who suffered physical trauma in the derailment suffered further injury as they were removed from the wrecked carriages. That inference follows from the fact that some were trapped in the wreckage. It would be very surprising if each was extricated without further harm.
Further, it may be readily inferred that many who were on the train suffered psychiatric injuries as a result of what happened to them in the derailment and at the scene. The process of their suffering such an injury was not over when Mr Wicks and Mr Sheehan arrived. That is why each told of the shocked reactions of passengers they tried to help. That is why each did what he could to take the injured to safety looking straight ahead lest the injured see the broken body of one or more of those who had been killed. As they were removed from the train, at least some of the passengers were still being injured.
If either inference is drawn, Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident “being injured”.
Even if neither of these inferences should be drawn, the fact remains that when Mr Wicks and Mr Sheehan arrived at the scene of the accident, those who had been on the train, and had survived, remained in peril. The agreed description of each of Mr Wicks and Mr Sheehan as “a rescuer” necessarily implies as much. Each sought to (and did) rescue at least some of those who had been on the train from peril. The observation of fallen electrical cables draped over the carriages is but a dramatic illustration of one kind of peril to which those who remained alive in the carriages were subject before they were taken to a place of safety.
Contrary to State Rail’s submission, the expression “being … put in peril” should not be given a meaning more restricted than that conveyed by the ordinary meaning of the words used. More particularly, “being … put in peril” is not to be confined to the kind of apprehended casualty which was at issue in Hambrook v Stokes Bros, where a mother feared a runaway lorry might have injured her child. It is not to be read as confined to the cases discussed by Evatt J in Chester v Waverley Corporation by reference to the decision in Hambrook. Nor is the expression to be read down by reference to how the phrase was to be understood when used in s 4 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). Rather, the expression should be given the meaning which the words ordinarily convey. A person is put in peril when put at risk; the person remains in peril (is “being put in peril”) until the person ceases to be at risk.
The survivors of the derailment remained in peril until they had been rescued by being taken to a place of safety. Mr Wicks and Mr Sheehan witnessed, at the scene, victims of the accident being put in peril as a result of the negligence of State Rail.
State Rail’s submission that neither Mr Wicks nor Mr Sheehan witnessed, at the scene, a victim or victims being killed, injured or put in peril should thus be rejected.
State Rail’s further submission, that the combined effect of s 30(1) and s 30(2) requires that a plaintiff must demonstrate that the psychiatric injury of which complaint is made was occasioned by observation of what was happening to a particular victim, should also be rejected.
In a case such as the present, where there were many victims, s 30(2) does not require that a relationship be identified between an alleged psychiatric injury (or any particular part of that injury) and what happened to a particular victim. To read the provision as requiring establishment of so precise a connection would be unworkable. It would presuppose, wrongly, that the causes of psychiatric injury suffered as a result of exposure to an horrific scene of multiple deaths and injuries could be established by reference to component parts of that single event. Rather, the reference in s 30(1) to “another person (the victim)” should be read as “another person or persons (as the case requires)”. The reference to “victim” in s 30(2)(a) is to be read as a reference to one or more of those persons. In a mass casualty of the kind now in issue, s 30(2)(a) is satisfied where there was a witnessing at the scene of one or more persons being killed, injured or put in peril, without any need for further attribution of part or all of the alleged injury to one or more specific deaths.
Conclusion and orders
Each appeal to this Court should be allowed with costs. In each matter, the orders of the Court of Appeal of the Supreme Court of New South Wales made on 31 August 2009 should be set aside. Because in neither case have there been findings about duty of care and about whether the appellant suffered a recognised psychiatric injury of which the negligence of State Rail was a cause, each matter must be remitted to the Court of Appeal for its further consideration in accordance with the reasons of this Court. Whether that Court can or should decide those issues itself, or whether it should remit the matter for retrial, will be a matter for further argument in, and decision by, the Court of Appeal. The costs of the proceedings in the Court of Appeal to date and the costs of the further proceedings in that Court should be in the discretion of that Court.
Brisbane Barrister – David Cormack